DETERMINATION OF THE CHILD’S RESIDENCE

The position of the Supreme Court on determining the way the father participates in the upbringing and communication with the child.

 ≡ The crux of the matter. The man went to court with a claim on the obligations of his ex-wife not to interfere with participation in the upbringing and free communication with his son and to determine the ways of the plaintiff's participation in the upbringing of his son.

 By the decision of the court of first instance, the claim was satisfied and left unchanged by the court of appeal. The mother of the child is obliged not to interfere with the upbringing and communication with the son and the ways of participation in communication and upbringing of the minor are determined by establishing a schedule for his systematic visits with the son, but only at the request of the child, taking into account his health, needs and interests, without the forced keeping of babies at home against her will. During the stay of the son with the father, the latter bears full responsibility for the life and health of the child. In addition, the court established that it is more comfortable for the child to live with the mother and stay with the grandfather and the woman, and not very comfortable with the father.

 The Supreme Court amended the decisions of the court of first and appeal instance, excluding the conclusions on the need to establish the method and procedure for the father's participation in raising a young son only at the request of the child, without compulsory keeping the child at home against his will, and also that during the son's stay with the father , the latter bears full responsibility for the life and health of the child.

≪ Opinion of the Supreme Court on the results of consideration of the cassation appeal≫

 The Supreme Court noted that the courts of first and appellate instances did not establish objective conditions under which such visits can take place solely at the request of the child.

 When determining the ways of the father's participation in the communication and upbringing of the child, the court must take into account, first of all, the interests of the child, which may not always correspond to her wishes, taking into account the age, state of health, psycho-emotional state.

 Neither the guardianship and guardianship authority, nor the defendant in the case provided the courts with evidence that the father's participation in the communication and upbringing of the child is possible only at the request of the child, as well as that there are stable psycho-emotional obstacles in communication between the father and the child.

Considering the child's permanent residence with the mother, the close psycho-emotional connection with her, the position of the father-child dating solely by the child's desire will lead to the impossibility of the father's exercise of his rights to participate in the upbringing and meeting with the child.

 The Supreme Court noted that the testimony of a young son in the framework of criminal proceedings cannot be evidence in a civil case, since the evidence collected in one case, without their proper assessment by the relevant court, cannot have unconditional evidentiary value in solving another case. The pre-trial investigation into the commission of a criminal offense provided for in part one of Article 125 of the Criminal Code of Ukraine (intentional minor bodily injury) did not end in court proceedings, the evidence collected during the pre-trial investigation was not analyzed and evaluated by the court, the results of such analysis and research were not found his statement in the relevant act of justice.

 In this case, the courts did not hear the opinion of the young child. In all action against children, whether taken by public or private social welfare institutions, courts, administrative or legislative bodies, the best interests of the child must be given priority (article 3 of the Convention on the Rights of the Child).

 In this case, the court has the right to make a decision contrary to the opinion of the child, if his interests require it (part three of Article 171 of the IC of Ukraine).

In this case, the minor did not express an opinion regarding the father's participation in communicating with him and in his upbringing, the court did not establish that the child's psychoemotional state indicates that communication with the father for his desire does not correspond to the interests of the child, and therefore the court's conclusions in this part not supported by proper and admissible evidence.

 The conclusion of the court's decision that the father during his stay with his son bears full responsibility for the life and health of the child also does not comply with the requirements of the law, since the decision of the court cannot change the mandatory norms of law. Noting that the father is responsible for the duration of his son's stay with him, the courts did not indicate what kind of responsibility was in question. At the same time, regardless of which parent the child lives with, their civil liability is determined according to the rules of the Civil and Family Codes of Ukraine, in particular, Articles 1178-1183 of the Civil Code of Ukraine (compensation for harm caused by a minor and a minor, respectively).

 Also, in accordance with Article 184 of the Code of Administrative Offenses, administrative liability is provided for the failure of parents or persons replacing them to fulfill their responsibilities for raising children, and under Article 166 of the Criminal Code of Ukraine - criminal liability for malicious failure to fulfill responsibilities for caring for a child or a person in relation to whom it is established Guardianship or trusteeship, etc.

 The definition in the decision on the responsibility of the father for the duration of his son's stay with him is not specific, contradicts the current legislation and does not add guarantees for the observance of the rights and interests of the child, and therefore such a wording is also subject to exclusion from the operative part of the court decision.

Link to the decision of the Supreme Court